Written by Peter CarterUpdated on July 20, 2020
A marine tourism operator has claimed civil liability immunity to avoid payment of $400k compensation for a serious spinal injury sustained by a passenger when its excursion boat encountered a steep wave.
In September 2012 Louise Lightfoot – a U.K. born recruitment consultant who moved to Australia in 2010 – booked tickets online for a tour with Rockingham Wild Encounters for herself and a friend visiting from overseas.
The booking was accepted by email on terms that she would be required to make payment and sign a waiver when she attended to collect tickets for the tour.
The following day they drove from Fremantle to Rockingham and called by RWE’s kiosk to collect and pay for the tickets and to sign the waiver which they did without reading it thoroughly.
The 32-yr-old Ms Lightfoot was seated at the bow of 100% Wild on departure from Penguin Island for a cruise around the islands of Shoalwater Bay Marine Park before searching for dolphins and sea lions in Cockburn Sound.
On the vessel’s return voyage westward out of the Sound, RWE’s skipper – Ian Bryant – chose to navigate via a 100m wide shallow gap in the reef rather than through a wider and deeper marked channel known as the South Channel which was equally accessible.
The boat encountered some waves in a 2m swell and then a much steeper wave that caused the bow to shoot up 3m or so, half way to the vertical.
Louise rose out of her seat and followed the boat back down as it crashed on to the surface, landing hard and striking her back against the seat’s edge.
The skipper made a call from the satellite phone for an ambulance to meet the vessel. In extreme pain, she was taken to Rockingham hospital but was almost immediately transferred to Fremantle. She underwent surgery at Royal Perth Hospital the following day for an L2 burst fracture of her lower spine.
When the matter came before the District Court in Perth, Judge Audrey Braddock ruled that that although the waiver had validly been incorporated into the contract, the antidote in Australian Consumer Law s 64 voided it. And because the exclusion of liability went beyond injury to include property damage, the antidote was immune to the super-toxin encapsulated in Competition and Consumer Act s 139A .
She also noted there had been previous recorded injuries to passengers from “bumpy rides” when Bryant was master of 100% Wild “in much the same location”.
And she concluded that Bryant was aware of the risk of injury from the waves and swell heading west in the Reef Passage and knew that there would have been less chance of encountering unusual conditions in the deeper South Channel had he chosen to take that route.
Notwithstanding those findings, Lightfoot failed in her claim by reason of a finding that the risk of a sudden steep wave arising in the passage was – at least in the mind of the skipper – “remote”.
Her honour made a precautionary assessment of Louise’s injuries – including loss of future earning capacity – at $397k.
Louise appealed, contending that the requisite Civil Liability Act elements of her injury being both foreseeable and “not insignificant” were made out. The trial judge had after all concluded that the previous boat injuries had occurred “in much the same location”.
RWE countered that – to establish foreseeability – the injured passenger would have to establish that the previous “bumpy ride” injuries had occurred in precisely the same spot as that where her calamity had occurred.
There had – so its argument went – been no such specific finding by the trial judge. In its contention, “in much the same location” could not be taken as a finding that the injuries had in fact occurred in the Reef Passage.
“In much the same location,” was – it proclaimed – equally applicable to any other place of a similar description i.e. any other passage of shallow water where swell was encountered.
The three appeal judges agreed.
“Given that the alleged negligence lay in the choice to navigate through the Reef Passage rather than South Channel, the occurrence of previous back injuries without any finding that this occurred in the Reef Passage does not provide any support for a finding of negligence”.
That was enough to sink Louise’s appeal.
The appeal court went on however to also conclude that notwithstanding “one or two previous incidents of injury caused by bumpy rides in everyday coastal navigation” the risk of such a wave causing such an injury when “traversing the Reef Passage in the conditions prevailing on this occasion” was, even if foreseeable, “not insignificant”.